Karnataka High Court
Shri Krishnappa S/O Late Eswarappa vs The State Of Karnataka on 25 January, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 450 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL No.450 OF 2012 (C)
BETWEEN:
1. SHRI KRISHNAPPA
S/O LATE ESWARAPPA
AGED 72 YEARS,
13TH CROSS, MARALUR DINNE,
TUMKUR, NATIVE OF KUPPANAPET,
DODDABALLAPUR
2. SMT ANANDAMMA @ LAKSHMAMMA
W/O CHANNAKESHAVACHAR
AGED 45 YEARS,
4TH CROSS, VEERASBHADRESHWARA SWAMY
TEMPLE ROAD, CHALLAKERE,
NOW RESIDING NEAR UCHANGAMMA TEMPLE,
RANGAIAHNA BAGILU ROAD,
CHITRADURGA
...APPELLANTS
Digitally (BY SRI. KARTHIK YADAV U, ADVOCATE)
signed by
MALATESH AND:
KC
Location:
HIGH THE STATE OF KARNATAKA
COURT OF REPRESENTED BY
KARNATAKA TUMKUR RURAL POLICE STATION
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED U/S 374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE OF
THE APPELLANTS DATED 12.3.2012 IN SPL. CASE NO.79/2009
PASSED BY THE PRINCIPAL SESSIONS JUDGE (SPECIAL
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CRL.A No. 450 of 2012
JUDGE), TUMKUR - CONVICTING THE APPELLANTS/ACCUSED
NOS.1 AND 2 FOR THE OFFENCE P/U/S 20(b)(i) OF NARCOTIC
DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 AND ETC
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Karthik Yadav, learned counsel for the
appellants and Sri Channappa Erappa, learned High Court
Government Pleader for the respondent.
2. Appellants who have been convicted for the offence
punishable under Section 20 (b) (i) of Narcotic Drugs and
Psychotropic Substances Act, 1985 ('NDPS Act' for short) were
ordered to undergo rigorous imprisonment for a period of two
years and six months and to pay fine of Rs.5,000/- each, with
benefit under Section 428 of Cr.P.C., are the appellants,
challenging the validity of the judgment passed in Special Case
in 79/2009, on the file of Principal Sessions Judge, Tumakuru,
dated 12.03.2012.
3. Facts in brief which are utmost necessary for
disposal of the present appeal are as under:
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On credible information, a raid party was formed by
Tumakuru Rural Police and a decoy was sent to the house of
the appellants with a Rs.100/- note for purchase of Ganja.
Decoy went inside the house and on confirmation about the
sale of ganja in the house of the appellants, gave pre-
designated signal to the raid party. Based on such signal, raid
party comprising of head of the raid party, sub staff and the
independent panchas entered into the house of the appellants.
4. On enquiry, the appellants initially denied the sale
of ganja in their place. On further enquiry, a plastic bag
containing dried ganja weighing 3 kilograms, worth about
Rs.50,000/- which was kept in a trolley suit case was taken out
from its hidden place and kept on the chair in the house of the
appellants. Raid party seized the same in the presence of
pancha witnesses, as admittedly, appellants did not possess
proper license to possess the said Ganja. Seizure proceedings
had been photographed wherein pancha witnesses, members of
the raid party, accused and seized ganja is very much visible in
the room and the hall of the said house.
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5. Later on appellants were apprehended by the head
of the raid party and after drawing mahazar, produced before
the Station House Officer.
6. Based on the report and the mahazar, Tumakuru
Rural Police registered the case under Section 20 and 25 of
NDPS Act, 1985.
7. Accused/appellants were arrested and produced
before the learned Special Judge and they were sent to Judicial
Custody. Seized Ganja was retained by the Investigating
Agency for the purpose of investigation and then sent to the
Forensic Science Laboratory ('FSL' for short) for chemical
examination.
8. Thereafter on completion of the investigation in
detail, charge sheet came to be filed for the aforesaid offences.
9. On receipt of the charge sheet, learned Sessions
Judge took cognizance of the aforesaid offences and secured
the presence of the appellants and framed the charge.
Appellants pleaded not guilty and therefore, trial was held.
10. In order to bring home the guilt of the appellants,
thirteen witnesses were examined as P.Ws.1 to 13 and as many
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as 17 documents were placed on record which were exhibited
and marked as Exs.P.1 to 17. The prosecution placed on
record nine material objects which were marked as M.Os.1 to 9
comprising of Rs.100/- currency note (one in number), ganja
packets which were taken as sample, ganja packet containing 2
kg 850 grms, 3 ganja packets weighing 50 grms each, 12
packets of ganja, Rs.150 cash and Rs.100/- cash recovered
from the appellants.
11. On conclusion of recording of prosecution evidence,
accused statement as is contemplated under Section 313 of the
Code of Criminal Procedure was recorded. Accused denied all
the incriminatory circumstances, but chose to examine three
witnesses on their behalf as D.Ws.1 to 3 and marked copy of
the panchanama dated 31.10.2007 as Ex.D.1.
12. Thereafter, learned Special Judge heard the parties
in detail and on cumulative consideration of the oral and
documentary evidence placed on record, convicted the
appellants for the offence punishable under Section 20 (b) (i)
of Narcotic Drugs and Psychotropic Substances Act, 1985 and
sentenced as referred to supra.
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13. Being aggrieved by the same, appellants are before
this Court.
14. Sri Karthik Yadav, learned counsel for the
appellants reiterating the grounds urged in the appeal
memorandum, vehemently contended that the learned Special
Judge failed to properly appreciate the material evidence on
record and wrongly convicted the appellants resulting in
miscarriage of justice and sought for allowing the appeal.
15. He also emphasized that the prosecution witnesses
who supported the case of the prosecution are P.W.1 to 3, 5, 9
and 10 who have deposed that entire quanity of ganja seized
under panchanama marked at M.Os.2 to 7 did not get
examined by FSL and sample report received from the FSL did
not tally with the remaining ganja and therefore, conviction of
appellants is incorrect.
16. Sri Yadav also contended that D.Ws.1 to 3 have
been examined on behalf of the accused who have specifically
stated that in order to foist a false case, M.Os 2 to 8/ ganja has
been implanted in the house of the appellants by the
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prosecuting agency. Therefore, accused/appellants are to be
held innocent.
17. He also pointed out that the evidentiary value of
Ex.D.1 is not properly discussed by the learned Special Judge in
paragraph-33 of the impugned judgment resulting in
miscarriage of justice and sought for allowing the appeal.
18. Alternatively, Sri Karthik Yadav contended that in
the event this Court upholding the order of conviction, Court
may consider the fact that appellants are innocent and
advanced in their age and they are the first time offenders and
thus sought for showing leniency by directing the custody
period already undergone by them as period of imprisonment
as the conviction is under Section 20(b)(i) of NDPS Act, 1985
by allowing the appeal in part by enhancing the fine amount
reasonably.
19. Per contra, Sri Channappa Erappa, learned High
Court Government Pleader supports the impugned judgment by
contending that there is no previous enmity established by the
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evidence of D.Ws.1 to 3 on behalf of the appellants that a false
case has been foisted against the appellants.
20. No doubt, certified copy of the judgment passed in
Spl. Case (NDPS No.5/2008) on the file of the Prl. District and
Sessions Judge, Chitradurga, wherein similar case has been
foisted against the appellants which ended in acquittal. But
fact of seizure of ganja from the house of the appellants having
been established in a proper manner, the conviction is to be
upheld.
21. He further pointed out that the defence taken that it
is one Lokanath is the culprit and is left out by the Investigating
Agency cannot be countenanced in law inasmuch as the
possession of seized ganja by the appellants stands established
by placing cogent evidence on record and thus sought for
dismissal of the appeal.
22. He also contended that no leniency can be shown as
the offence under the provisions of NDPS Act, 1985, are grave
unlike IPC offences and is a designed crime. Therefore, if any
leniency shown to appellants, same would encourage the
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similarly placed perpetrators of crime and thus sought for
dismissal of the appeal in toto.
23. Having heard the parties in detail, this Court
perused the material on record meticulously.
24. On such perusal of the material on record, following
points would arise for consideration.
(i) Whether the material evidence placed on
record by the prosecution is sufficient enough
to maintain the Order of conviction of the
appellants for the offence punishable under
Section 20 (b) (i) of Narcotic Drugs and
Psychotropic Substances Act, 1985?
(ii) Whether the impugned judgment is suffering
from legal infirmity, perversity and thus calls
for interference by this Court?
(iii) Whether the sentence is excessive?
(iv) What Order?
25. REGARDING POINT NOs.1 AND 2: In the case on
hand, admittedly, place of incident is the house of the
appellants. On credible information, Tumakuru Rural Police
formed a raid team. To ascertain as to the sale of ganja from
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the house belonging to the appellants' daughter, head of the
raid party sent a decoy with a Rs.100/- currency note. Decoy
went inside the home and purchased the ganja by tendering
Rs.100/- sent by head of the raid party after noting the serial
number of the currency note. Thereafter, decoy gave a pre-
designated signal to the raid party. It is at that juncture, all
the raid party members entered the house of the appellants.
26. On enquiry, initially appellants did not properly
answer the queries put by the head of the raid party. On
further enquiry, appellants went inside the room and took out a
hidden trolley suit case and from that, they took out a plastic
bag containing the some dried leaves. On opening the plastic
bag, head of the raid party got confirmed that it is ganja as it
had a strong odour.
27. On further enquiry about possessing of the licence,
appellants answered that they do not have licence to possess
huge quantity of ganja. Smaller packets no doubt denoted the
personal quantity, but, the plastic bag containing 3 kg ganja
was of intermediary quantity.
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28. Taking note of the same, head of the raid party
termed it as illegal possession of contraband article and seized
the same in the presence of panch witnesses and drew the
mahazar. Entire seizure proceedings were photographed and
members of the raid party including panch witnesses and
accused persons are clearly visible with the seized ganja in the
photographs.
29. Absolutely no explanation is forthcoming with
regard to seized ganja is concerned from appellants.
30. A feeble attempt is no doubt made that one
Lokanath is the real culprit who implanted the ganja in the
house of the appellants and later on intimated the police.
Pertinent to note that said Lokanath is not cited as a witness on
behalf of appellants though three witnesses viz.,Bhaskar,
Lepakshachar and Prasannappa are examined on behalf of the
accused as D.Ws.1 to 3.
31. It is the contention of the appellants that it is
Lokanath who is the real culprit and he is left out by the police
without taking any action.
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32. In this regard what is required to be appreciated by
the Court is the possession of seized ganja in the house of the
appellants. On careful reading of the provisions of Section 20
of the NDPS Act, it is crystal clear that possession of illegal
ganja completes the offence.
33. No doubt, Sri Karthik Yadav contended that mere
possession is not sufficient to complete the offence and
conscious possession is to be established. Admittedly, place of
incident is a house. The house belongs to the daughter of the
appellants.
34. After decoy gave pre-designated signal head of raid
party entered inside house and enquired about possession of
ganja. It is at that juncture, appellants took out hidden trolley
suit case and opened it and from there plastic cover containing
3 kg ganja was shown to the raid party which was then seized.
Therefore, contentions urged on behalf of the appellants that all
ingredients to attract the offence under Section 20(b)(i) is not
attracted cannot be countenanced in law.
35. The fact of hiding the trolley suit case in the house
and taken out by the appellants when the raid party entered
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the house sufficiently establishes the conscious possession of
M.O.3-ganja by the appellants.
36. Under such circumstances, even after re-
appreciation of the material on record, this Court is of the
considered opinion that material evidence placed on record by
the prosecution is sufficient enough to maintain the conviction
of the appellants for the offence punishable under Section
20(b)(i) of the NDPS Act.
37. In view of the foregoing discussion, point No.1 is
answered in the affirmative and point No.2 is answered in the
negative.
38. REGARDING POINT No.3: For the aforesaid
established offence, learned Special Judge using his discretion
has granted 2 ½ years rigorous imprisonment along with fine of
Rs.5,000/- each. Admittedly, appellants are first time
offenders. Age of the appellants as on today is 88 and 61,
respectively.
39. Sri Karthik Yadav, contended that, appellants are
suffering from usual old age ailments and are not in a position
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to serve rigorous imprisonment as ordered by the learned
Special Judge.
40. He also contended that taking note of the fact that
the appellants are first time offenders and are in the evening of
their life, suitable orders be passed by reducing the sentence of
imprisonment by enhancing the fine amount reasonably.
41. Taking note of these aspects of the matter, custody
period already undergone by them if treated as period of
imprisonment by enhancing the fine in a sum of Rs.25,000/-
(Rs.5,000/-imposed by learned Special Judge plus Rs.25,000/-
=Rs.30,000/-) each would meet the ends of justice.
42. Accordingly, point No.3 is answered partly in the
affirmative.
43. REGARDING POINT No.4: In view of the finding of
this Court on point Nos.1 to 3 as above, the following:
ORDER
(i) Appeal is allowed in part.
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(ii) While maintaining the conviction of the
appellants for the offence punishable under
Section 20(b)(i) of the NDPS Act, sentence of
rigorous imprisonment for 2½ years is set-
aside by directing that the custody period
already undergone by the appellants is to be
treated as period of imprisonment in the
peculiar facts and circumstances of the case
by enhancing fine amount in a sum of
Rs.25,000/- payable by each of the appellants
(Rs.5,000/- +25,000/-=Rs.30,000/- in all) on
or before 28.02.2025 failing which appellants
shall undergo rigorous imprisonment as
ordered by the learned Special Judge.
(iii) Office is directed to return the Trial Court
Records with copy of this judgment forthwith
for issuance of modified conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
MR-paragraphs 1 to 6,
kcm-paragraphs 7 to end.
